Government Benefitsfor Non-Citizens

October 2013

Laura MelnickSMRLS

651-894-6932laura.melnick@smrls.org

Government Benefits for Non-Citizens1. Welfare reform2. Definitions: qualified and unqualified

immigrants, “battered immigrants”3. Sponsor-deeming4. “SAVE”5. Reporting to Immigration6. Public charge considerations7. 5-year Bar8. Federal cash and food benefits:

a. SSIb. SNAP (food stamps)

9. State and federal/state cash & food benefitsa. cash and food: TANF – families (i) FSS (Family Stabilization Services) (ii) DWP (Diversionary Work) (iii) MFIP (MN Family Investment Program) (iv) WB (Work Participation Cash Benes.)b. cash: GA (General Assistance)

c. cash: MSA (Minnesota Supplemental Assistance)d. emergencies: EA (Emergency Assistance), and EGA (Emergency GA)

e. non-need-based: UI (Unemployment Insurance) f. food MFAP (MN Food Assistance Program)

g. health care(i) MA (Medical Assistance)(ii) EMA (Emergency MA)(iii) MinnesotaCare

10. other benefits11. considerations for mixed-status

households12. scenarios

1. Welfare reform enacted August 22, 1996

replaced AFDC (family cash program) with “TANF” block grants to states

imposed lifetime limits on, and work requirements for, family cash assistance

eliminated SSI & food stamp eligibility for many non-citizens (“Restricting Welfare and Public Benefits for Aliens” provision)

required certain agencies to file reports with Immigration

Post-1996 federal law changes (all good!) IIRIRA - ILLEGAL IMMIGRATION REFORM &

IMMIGRANT RESPONSIBILITY ACT OF 1996• amended definition of “Qualified Alien” to include

battered non-citizen.• (BUT – clarified that SSDI & retirement benefits could

not be paid to anyone not “lawfully present” in US)

BBA - BALANCED BUDGET ACT OF 1997• broadened eligibility for SSI based on disability; • extended SSI window for refugees, asylees to 7

years;• treated Amerasian immigrants as refugees; • broadened “qualified” definition to include certain

Indians born in Canada; &• added surviving spouses to US vet exception.

1998 AGRICULTURAL RESEARCH ACT restored food stamp eligibility to certain groups of

legal immigrants (those receiving disability benefits, elderly, under 18, Hmong/Laotian); also extended window for refugees, asylees to 7 years (from 5).

FARM BILL OF 2002significantly broadened eligibility for food stamps for non-citizens beginning 2003 (allowed all “qualified” non-citizens to get food stamps 5 years after arrival; eliminated 5-year wait for certain groups).

SSI EXTENSION FOR ELDERLY AND DISABLED REFUGEES ACT OF 2008allowed certain humanitarian immigrants an additional 2-3 years of SSI past their “window.”

2. Definitionsfor eligibility for FEDERAL benefits.

“QUALIFIED” NON-CITIZEN lawfully admitted for permanent residence under

the Immigration & Nationality Act (INA)

“refugee,” including Haitian, Cuban, & Amerasian

granted asylum or parol

granted conditional entry before 4/1/80

deportation withheld or removal cancelled

granted T-Visa

“battered immigrant”

“UNQUALIFIED” NON-CITIZENSexpired or no documentation

pending application for adjustment, asylum, suspension of deportation, or cancellation of removal

lawful temporary resident under amnesty program

non-immigrant (temporary protected status, or student, visitor, or temporary worker visa)

U-visa (crime victim)

Deferred Action for Childhood Arrival (DACA)

“BATTERED IMMIGRANTS”can qualify for range of federal & state-funded

benefits but must wait 5 years for SNAP, SSI, MA:

o must have been battered or subjected to extreme cruelty in U.S. by U.S. citizen or LPR parent, spouse, or relative in same household, AND

o must no longer live with abuser, AND

o need for benefits must be “substantially connected” to abuse, AND

applicant must either:

• be spouse or child of U.S. citizen AND have petitioned for adjustment of status under Violence against Women Act (VAWA); OR

• be spouse or child of U.S. citizen OR LPR AND have petitioned for cancellation of removal under Immigration and Nationality Act (INA).

3. Sponsor-deemingattribution of income from sponsor to immigrant

can make certain immigrants COMPLETELY INELIGIBLE for almost all types of public assistance!

Requirement imposed by 1996 welfare reform law.

Began December 19, 1997 with implementation of “Affidavit of Support” form (form I-864).

Applies only to family-based immigrants (immigrants arriving through petition from family member) & immigrants who come to US to work in family-owned business).

Deeming does NOT apply to:

refugees, asylees, parolees

diversity visa (visa lottery) recipients

Cuban/Haitian entrants

people granted Temporary Protected Status

children under 18 (for SNAP and MA only)

pregnant women (MA & MinnesotaCare only)

How deeming works• 100% of income & assets of sponsor AND

sponsor’s spouse are considered fully available to immigrant. (Less harsh deeming for SNAP).

• Sponsor’s family size & fixed debts are irrelevant.

• Burden of proving sponsor has little income on immigrant applying for public assistance.

• Income and assets deemed until: immigrant becomes U.S. citizen, works 10 years, or dies; OR sponsor dies.

• Divorce from sponsor has no effect on deeming.

• Whether deeming will affect people other than sponsored immigrant varies by type of assistance program.

• In MFIP & other family cash programs, & for MinnesotaCare, income is deemed to all members of “assistance unit.”

• In MA, income & assets are deemed only to sponsored immigrant.

2 exceptions to deeming:A. Indigence exception:

Sponsor-deeming will NOT apply if welfare agency determines that, as result of sponsor’s failure to support, immigrant is without food and shelter.

12-month renewals available.

Govt. can sue sponsor for reimbursement. (Immigrant can sue sponsor, too, for non-support).

B. Battered spouse/child exception Deeming will NOT apply if immigrant or child is

battered or subjected to extreme cruelty by spouse or parent, or by relative of spouse or parent in same household.

Immigrant can’t have participated in abuse of child.

Immigrant must show that battery or cruelty is substantially connected to need for benefits.

Exception ends after 12 months, UNLESS battery was perpetrated by sponsor AND is recognized in court order (OFP, etc.) or USCIS determination.

Government can sue for reimbursement; immigrant can sue for non-support.

Deeming applies to:cash programs: SSI, MSA, GA, MFIP, EA food programs: SNAP for adults; MFAPhealth care programs: MA, MinnesotaCare

Deeming does NOT apply to:o EMA (Emergency Medical Assistance)o MA & MinnesotaCare for pregnant women &

children o SNAP for childreno Basic Sliding Fee child careo SSDIo UI

Special 3-year deeming for MFIP

• 3-year deeming in state law for MFIP only.

• Applies only to those who came to U.S. through means other than relative petition (such as diversity visa).

• Does not affect refugees or asylees.

• Takes into account sponsor’s family size & support obligations.

4. “SAVE”Systematic Alien

Verification for Entitlements

o Inter-agency governmental information-sharing program

o Used to verify immigration status for public assistance & public housing

o NOT used for reporting immigration status (or lack thereof) to Immigration

5. Reporting to Immigrationrequirement stems from 1996 welfare reform lawWHO IS REQUIRED TO REPORT?

Only:agencies receiving “TANF” funds (in MN,

that means county agencies administering MFIP & DWP benefits)

Social Security Administration

public housing agencies contracting with HUD

WHAT MUST BE REPORTED?

names, addresses, & other “identifying information”

ON

anyone worker “knows” is unlawfully in U.S.

Reporting in Minnesotaprotocols require that agencies:

report to MDHS rather than to Immigration

not verify status if not relevant to benefit being sought

stop inquiring about status when applicants are unwilling/unable to verify

interpret “knowledge” very narrowly

comply strictly with data privacy laws

6. “Public charge” Receiving/having dependents receive certain benefits

may affect ability to adjust to LPR status.

Benefits considered are:

cash benefits: MFIP, DWP, SSI, MSA, GAlong-term medical care (nursing home care)

Benefits not considered include health care, WIC, housing & energy assistance, & benefits not intended for income maintenance.

Receipt of SNAP or state-funded food support not a factor for public charge determinations.

7. “5-year bar”5-year “bar” prevents immigrants from

receiving federal benefits during first 5 years in “qualified” status.

Benefits affected are SSI, SNAP, MA, & federally-funded MFIP.

During 5-year wait period, immigrants may receive state-funded benefits if eligible for them (& such benefits exist).

BENEFITS!

8. Federal cash & food benefits:

a. Supplemental Security Income (SSI)

Social Security administers 2 types of disability benefits:

SSI, for low-income, low-asset individuals. Recipients must be too disabled to work or 65 or older.

SSDI, for people too disabled to work who meet earnings requirements by having paid into system via FICA wage deductions.

To qualify for SSI, non- citizen applicants must:

meet definition of “qualified” non-citizens under federal law;

ANDmeet certain residency requirements.

SSI residency issues:A. immigrants lawfully residing in U.S.

before welfare reform (8/22/96)

if on SSI on 8/22/96, can keep getting SSI as long as elderly or disabled.

if not on SSI on 8/26/96, can get SSI now if:

• “qualified” AND• disabled.

Can’t get SSI based on age (over 65).

B. arriving after welfare reform(coming to U.S. or adjusting to LPR status after

8/22/96)

If “unqualified,” can’t get SSI.

Even if “qualified,” probably can’t get SSI.

There are 3 exceptions.

Exceptions to SSI ineligibiity:

1) refugees, asylees, & those granted withholding: 7 year window of eligibility (from date of grant of status).

2) U.S. veterans, active-duty members of U.S. armed forces, & spouses or minor children of vets & active duty members: no time limits, not subject to 5-year bar.

Hmong soldiers who fought with the CIA inVietnam War not considered “U.S. veterans.”

3) workers (or those credited with at least 40 work quarters): no time limits, but 5-year bar applies.

Note about work exception:

o Only work where FICA taxes deducted from pay counts toward 40-quarter requirement.

o Quarters can be attributed from spouse to spouse & from parent to minor child. Minor children can carry parents’ quarters into adulthood.

o Any quarters worked after December 31, 1996 in which hh received federal “need-based” benefits (AFDC, MFIP, SNAP, SSI, MA) do not count as quarters.

Sponsor-deeming and Social Security

o Because SSI is need-based program, sponsor-deeming may preclude eligibility.

o Because SSDI is not need-based, sponsor-deeming does not apply.

b. SNAP

Except when sponsor-deeming applies, all “qualified” non-citizens are potentially eligible for SNAP.

Applicants may have to wait 5 years to get SNAP benefits.

SNAP exemptions from 5-year bar refugees, asylees, & those granted withholding

of deportation

U.S. veterans & active-duty members of U.S. armed forces (& their spouses & unmarried dependents)

elderly immigrants who were “lawfully residing” in U.S. AND at least 65 on 8/22/96

disabled (certified by State or SSA)

under age 18Hmong or Highland Lao

9. State (and federal/state) cash & food benefits

requirement for all state cash & food benefits:

“steps” toward citizenship

Most recipients of state-funded assistance must take “steps” toward obtaining citizenship.

They don’t have to take such steps if:

legally residing in U.S. fewer than 4 years;are age 70 or older; ORliving in nursing home, group home, or similar

facility.

“Steps” toward citizenship“steps” =

o taking citizenship, literacy, or ESL class

o being on wait list for ESL or literacy class

o having application for citizenship on file

o applying for waiver of citizenship test requirements

o having failed citizenship test at least twice or being unable to understand rights & responsibilities of citizenship.

“Lawfully residing people”Some non-citizens not eligible for federal

benefits may get state-funded benefits:

Lawful Temporary ResidentsTemporary Protected Status (TPS) recipients applicants for asylum or withholding who have

employment authorization spouses or children of U.S. citizens with

approved visa petition or pending application for adjustment to LPR

Others permitted to stay in US for humanitarian or public policy reasons. (Category includes Deferred Enforced Departure [DED], deferred action, voluntary departure)

Victims of Trafficking: T Visas

o Victims of trafficking who have “T” visas are eligible for both federal and state-funded benefits to extent that refugees are eligible.

o To qualify, T visa holders must get certification from the Office of Refugee Resettlement (ORR).

Crime Victims: U Visas• Crime victim recipients of “U” Visas are not eligible

for federally-funded benefits; U Visa is “non-immigrant” visa.

• U Visa holders are not eligible for state-funded cash benefits.

• They are eligible for MinnesotaCare.

• They are eligible for state-funded food benefits (MFAP) if they meet categorical eligibility requirements.

DACA recipients

o Those granted Deferred Action for Childhood Arrivals (DACA) are not considered “lawfully residing” for MA (according to HHS).

o DACA recipients should qualify for MinnesotaCare.

a. cash & food: TANF(i) FSS – Family Support Services

(ii) DWP – Diversionary Work Program(iii) MFIP – Minnesota Family Investment Prog.

(iv) WB – Work Participation Cash Benefits

MFIP, DWP, FSS & WB = programs that have replaced AFDC.

They provide cash assistance to families with minor children. Cash grants for MFIP, DWP & FSS are very low: $437 for a household of 2, $532 for 3, $621 for 4, $697 for 5, etc.

Adults without minor children are not eligible for FSS, DWP, MFIP or WB.

FSS, DWP, MFIP & WB Most non-citizens here lawfully & permanently can

get family cash benefits if categorically eligible, whether “qualified” or “unqualified” under federal law.

Certain non-citizens can only get state-funded benefits. (Eligibility depends on date of arrival in U.S. & immigration category).

Newly-arrived (here < 1 year) are exempt from DWP.

State-funded benefit recipients must take “steps” toward citizenship.

Sponsor-deeming may preclude eligibility.

MFIP & DWP work plans & ESLMost MFIP recipients have to work, unless exempted.

o Counties may allow non-English speakers to include ESL in job search & work plans if spoken language proficiency level low enough on standardized testing.

o MFIP recipients may fulfill only half of work participation requirements through ESL, unless taking intensive functional work literacy.

o MFIP & DWP recipients may include ESL in work plans for total of only 24 months (out of 60).

b. cash: General Assistance (GA)

GA is state-funded program for low-income, low-asset individuals not living with minor children.

GA is also for minor children whose adult caregivers don’t qualify for MFIP due to relationship status.

GA pays $203 per month for individual & $260 for married couple.

Legal immigrants residing in U.S. permanently (or with pending application for adjustment) may get GA if meet other eligibility criteria.

If under 70 & here at least 4 years, must take steps toward citizenship.

Sponsor-deeming may preclude eligibility.

c. Cash: Minnesota Supplemental Assistance (MSA)

MSA is state supplement for recipients of SSI (or those who would receive SSI but for excess income).

MSA serves to ameliorate high housing costs.SSI recipients living in “shared households”

usually ineligible for MSA.Average MSA supplement = $81.Non-citizens must take “steps” toward

citizenship, & sponsor-deeming may preclude eligibility.

d. cash: EA and EGAEmergency Assistance (EA) & Emergency GA (EGA)

designed to prevent destitution, providing cash grants to resolve crises.

Both EA & EGA are funded through block grants from State, so individual counties have great deal of discretion in administering benefits.

Legal, permanent residents are eligible for EA & EGA to same extent (& subject to same limitations) as U.S. citizens.

Sponsor-deeming may preclude eligibility, but applicants may qualify for indigence exception.

e. non-need-based cash: Unemployment Insurance (UI)

UI benefits can be paid if worker was:

• lawfully admitted for permanent residence at time of employment;

• lawfully present for purposes of employment; OR

• permanently residing in U.S. under color of law at time of employment.

Work done before attaining legal status does not count toward earnings requirements.

UI benefits not need-based; therefore not subject to sponsor-deeming.

f. FoodMFAP – MN Food Assistance Program

Legal, permanent non-citizens not on MFIP here < 5 years (who may be subject to 5-year bar on SNAP) may get food assistance through MFAP.

MFAP benefits available only to those age 50 & up.

MFAP program follows federal SNAP regulations.

MFAP recipients may be subject to sponsor-deeming.

g. health care(i) Medical Assistance (MA)

MA available to immigrants who:

are low-income & low-asset; are “qualified” under federal law; AND meet categorical requirements, meaning they’re:

• pregnant;• living with minor children or in MFIP household;• <21; • >64; • certified disabled by State or SSA; OR• >20, without kids, & living <76% FPG.

Sponsor-deeming may preclude eligibility.

In 2011, Minnesota legislature eliminated state-funded MA statutorily, effective

1/1/12, for non-citizens lawfully residing in the U.S. who were not eligible for federally-

funded assistance. Implementation of change took place 3/1/12.

No longer eligible MA, since 3/1/12, are:

o people considered “otherwise lawfully residing” who don’t meet definition of “qualified” under federal law; AND

o LPRs subject to 5-year bar. (All in this group should qualify for MinnesotaCare during 5-year wait, except those on Medicare).

NOTE: Pregnant women & children remain eligible for MA (funded by SCHIP, State Children’s Health Insurance Program). No 5-year bar.

Special rule fortorture survivors

Those receiving “care and rehabilitation” services from Center for Victims of Torture (CVT) do NOT have to meet MA guidelines in terms of:

o categorical eligibility;o income and asset restrictions; ORo immigration requirements.

(ii) Emergency Medical Assistance (EMA)

Basic safety net health care program.

Can provide health care services to “medically needy” people who are undocumented, who have lapsed documentation, or who otherwise would be ineligible due to sponsor-deeming.

Does NOT cover organ transplants or “related procedures.”

EMA is available only to those categorically eligible for MA (i.e., living in household with minor children, pregnant, elderly, certified disabled, <21, or >20 and living <76% FPG).

EMA is for “Emergency Medical Services”:

required for medical conditions manifested by acute symptoms of such severity that absence of

immediate medical attention reasonably could be expected to result in:

o Placement of patient’s health in serious jeopardy;

o Serious impairment to bodily functions; OR

o Serious dysfunction of any bodily organ or part.

EMA no longer available for chronic conditions since 1/8/12:

o MN legislature eliminated EMA eligibility for those with chronic conditions in 2011.

o Exceptions were made for those who would have respiratory or cardiac failure within 48 hours but for treatment.

o In 2012 legislature allowed EMA for kidney dialysis & for treatment (including chemotherapy & radiation) for cancer.

o Law limits EMA to care delivered in hospital emergency rooms or ambulances; on in-patient basis following ER care; & as follow-up care directly related to ER treatment.

Medical coverage for pregnant women

Pregnant women qualify without regard to immigration status or sponsor

income for:

labor & delivery ANDpre- & post-natal care for 60 days after

birth

(iii) MinnesotaCareNeed-based program with higher income allowances

than MA. Available to those ineligible for MA because of

categorical or income restrictions.Available to those who meet income guidelines AND:

are “qualified” non-citizens OR effective 3/1/12, meet definition of “lawfully

present” under federal regulations.

DACA grantees & U Visa recipients should qualify. Sponsor-deeming may preclude eligibility.

10. Other benefitsSome benefits available without regard

to immigration status include:

• WIC (Women, Infants & Children) benefits• school breakfast & lunch benefits• benefits through Head Start• K-12 free public education• public health immunizations & testing• soup kitchens, short-term shelter, etc.• child care assistance for U.S. citizen children

11. Considerations for mixed-status households

To avoid getting reported to Immigration, those without proper documentation should be advised to:

Tell agency they are not eligible for benefits for themselves due to immigration status.

Tell agency they are applying only for eligible household member.

Not provide details about their status to agency. Not provide Social Security number (unless

necessary for income verification). Verify earned income, from whatever source. Verify pregnancy if seeking health coverage.

SCENARIOS

A. Battered immigrants: Natasha

o Natasha is 36 & came to US without papers. She left U.S. citizen husband after he assaulted her with baseball bat, causing traumatic brain injury.

o Friend is letting Natasha stay in her condo & has stocked it with food.

o Natasha filed a VAWA petition & received notice last month she’d made prima facie case for VAWA relief.

o Natasha’s main concern is medical coverage. Cognitive functioning is significantly impaired due to injury, & she needs some home health care to remain in community (& out of nursing home).

o MA covers home health services; MinnesotaCare does not.

o Natasha would also like cash assistance, since she can’t work. She doesn’t have SSDI eligibility.

A. Natasha quizNatasha:

1. is not currently eligible for any cash or health care because she is undocumented.

2. is eligible for GA & MinnesotaCare, but not for SSI or MA; therefore, she can’t get home care.

3. is eligible for SSI & MA since, she is now a “qualified” non-citizen under federal law.

B. Sponsor-Deeming: Ralph & Mai Liao Mai Lia moved to US with minor daughter, Bee (now 8), 6 years ago,

via relative petition signed by Mai Lia’s mom. Mom lives in California with stepdad, who earns $200,000 a year.

o 11 months ago, Mai Lia married widower Ralph, US citizen & MFIP recipient with 6 kids. Mai Lia’s mom & stepdad stopped talking to her after marriage. Ralph added new wife to MFIP grant, then added couple’s new baby, Jethro, 2 months ago (he gets only food portion & MA).

o County just notified Ralph it made mistake by not counting Mai Lia’s deemed income. County has determined that whole household is ineligible for MFIP. County has terminated household’s MFIP benefits & assessed it huge overpayment.

o Ralph & Mai Lia were just served with eviction notice from landlord.

o County says: Ralph and all 8 kids remain eligible for MA. Kids can get SNAP. No one else is eligible for anything.

B. Ralph & Mai Lia quiz.

Mai Lia should:

1.Appeal the MFIP termination & overpayment; she has not had any contact with mom & stepdad, so their income should not be imputed to household (and, particularly, to 8 U.S. citizen members of household, including child born after signing of I-864 affidavit).

2.Encourage Ralph to appeal imposition of sponsor-deeming, as he & all his children are US citizens & therefore can’t be subject to sponsor-deeming.

3.Reapply for MFIP & SNAP and start working on citizenship application.

C. Reporting and Public Charge: Tamara & Mustafa

o Tamara is U.S. citizen, married to Mustafa. Mustafa’s student visa expired; he hopes to adjust to LPR status sometime.

o Tamara is unemployed. Mustafa works part-time using SSN he obtained on black market. Neither is eligible for UI. Mustafa isn’t earning enough to make ends meet.

o The couple has 2 minor children born in U.S. Household needs food, medical & cash. Tamara is worried that applying for benefits will:

cause County to report Mustafa’s lapsed status to Immigration;

get Mustafa in legal trouble because of false SSN; &harm Mustafa’s chances of adjusting to LPR status.

C. Tamara & Mustafa quiz

Tamara should:

1. apply only for medical & food benefits, reporting Mustafa’s wages to County as part of application process.

2. Apply only for medical and food benefits, but not report Mustafa’s wages to County because he used false SSN & he could get charged criminally.

3. Not apply for any benefits. County would have to report Mustafa to Immigration, & he could face removal (deportation).

4. Apply for all benefits. She has nothing to fear; she’s merely being worry-wart.

D. SSI: Tango Tang is 52, from Laos. She came to U.S. as refugee little

over 7 years ago.

o Tang doesn’t speak English. She suffered trauma in her youth & can’t work. She likes to keep to herself. She started getting SSI couple years ago due to PTSD. She also got state MSA grant.

o Because she had over $700 in monthly income, Tang could afford her own apartment.

o Recently, Tang’s SSI & MSA terminated because she is not U.S. citizen. Tang applied for GA but doesn’t know how she’ll pay her rent. County says she can’t get GA until she signs up for ESL, literacy, or citizenship classes.

o Tang wants her SSI benefits back.

D. Tang quizTang should:

1. ask Social Security to reinstate her SSI benefits; as Hmong refugee, she is not subject to 7-year limitation.

2. file new application for SSI since she hasn’t used her 7 years of benefits yet.

3. apply for subsidized housing, sign up for citizenship classes, file citizenship application, & ask doctor to complete medical waiver form for it.

4. appeal County’s termination of her MSA benefits. She’s a “qualified” non-citizen.

5. move to Nebraska, as she’ll automatically get SSI there.